-25- expenses not related to the operation of the relevant business activity.” Sec. 1.482-5(d)(3), Income Tax Regs. Respondent contends that petitioner paid its employees ESOs in exchange for research and development services, and such services contributed to petitioner’s development of intangibles. In support of his position, respondent emphasizes petitioners’ tax treatment of options for section 41, Credit For Increasing Research Activities, and section 83 purposes. Petitioners contend that there was no outlay of cash upon the issuance of its ESOs, and thus, no cost was incurred. Petitioners further contend that any cost associated with the ESOs was borne by shareholders because the exercise of ESOs increased the outstanding shares and reduced existing shareholders’ earnings per share. In addition, petitioners contend that the costs determined by respondent are not related to petitioner’s intangible development area. Assuming arguendo that the spread and the grant date value are costs for purposes of section 1.482-7(d), Income Tax Regs., we conclude that respondent’s allocations fail to meet the requirements of section 1.482-1(b), Income Tax Regs. (discussed infra section III.D).Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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